Survey of views on whether a courtroom is the right place to determine the care arrangements for a child whose parents are disputing residence and contact

Most family lawyers would agree that court should be an option of last resort in disputes over children. Yet where it proves unavoidable, cases invariably involve a succession of child welfare hearings, where the same arguments are rehearsed time and again but little discernible progress is made and clients only become more entrenched.

As yet, while other jurisdictions refine their processes to incorporate ideas such as compulsory parenting classes, as in some states in America, or the newly operating Australian Children’s Case Program (see below), there seems to be no imperative here to look afresh at our system of resolving disputes.

A new hearing system?

Margaret Scanlan OBE, consultant with Russells Gibson McCaffrey in Glasgow, contends that arguing in court about whether “wee Jimmy spends three or four hours with his dad on a Saturday afternoon”, does a disservice to the legal profession and to the children caught up in the dispute.

“There’s not a lot of law in it and I would be in favour of a system more akin to the children’s hearing system. If we consider that system suitable for children involved in criminal matters, then why not for all children where there is a dispute between parents?”

The problem at the moment, she says, is difficult parents who like the whole idea of litigation. “They get a buzz fighting it out on legal aid. Certainly at one time there was more money spent on civil legal aid for contact disputes than any other category. I’m not saying all cases are like that, but so many are not on the issue of whether a child having contact with the absent parent is good, but the minutiae of how that contact will operate, and that’s surely not what courts are there for or what we as solicitors are trained to do.”

Parents embroiled in such disputes need to be made to understand, and sheriffs who “end up behaving like therapists”, are not the people to do it, argues Scanlan.

“Sheriffs are paid to judge based on the facts, but all too often they will pass the matter to a solicitor to produce a report. These reports cost a fortune, again usually on legal aid. Solicitors end up in McDonalds on a Sunday afternoon observing contact between a father and child. It’s ridiculous. Lawyers are not trained in how to speak to parents in these situations, or how to speak to a confused child. They then come back with a 30-page report on a matter as important as a child’s future relationship with a parent.”

While she admits to “no great faith in systems based on volunteers”, if there was a tribunal system which was like the children’s hearing, they could identify the problem, attempt to rectify it, and only if that failed, remit to the sheriff for proof.

Your flexible welfare hearing

Having been at the forefront of the Glasgow Sheriff Court specialist family court initiative, where formalities are dispensed with and efforts made to ensure the same sheriff hears a case throughout its life, now-retired sheriff Graham Johnston maintains that only a court can offer the compulsitor to make its orders respected and enforceable. He acknowledges that a hearings system could be given enforceability, but argues that a court “in the loosest sense of the word” is a good setting for considering and resolving the issues.

“The child welfare hearing if properly handled is the most useful tool for handling care arrangements. Not only is it a forum in which the parties themselves – not just their lawyers – can have their say; it also enables the court in the form of the sheriff to give advice and direction to parents whose guiding principle may be to scupper the former partner. The courts can do this if the sheriffs are properly trained and have the skills to act as mediators.”

The welfare hearing, Johnston maintains, has the flexibility to seek innovative solutions and provide continuing monitoring of care arrangements or contact. He also advocates the sheriff going beyond just inviting the child into chambers for discussion, suggesting they go and visit the child in their own environment: an experienced sheriff can usually ascertain when a child is repeating what they have been told to say.

“What is necessary is flexibility to meet the problems, and an experienced or enlightened sheriff who can appreciate the problems of the child and the parents and also have the mental acuity to find solutions. Rules and protocols tend to be counter productive.”

Generalists preferred

For Johnston, the best thing to come out of the Glasgow initiative was the very lack of rules under which the sheriffs operated, which left them able to “fly by the seat of their pants”.

Yet in the seven years since the Glasgow court commenced, there has been little sign of the approach being adopted elsewhere. Indeed the inconsistency of approach – sheriffs in the same court having different approaches to wearing gowns, or more fundamentally no clear policy on whether the same sheriff will hear a case – seems positively to fly in the face of the ethos behind child welfare hearings.

“Sheriff principals do not tend to appreciate how a specialised area of family law should be handled, and court programmers do not like to think that a sheriff is not competent and available to do anything and everything that crosses his path.”

Consistency of approach, he adds, could be achieved by a specialist cadre of family sheriffs doing the bulk of family work, travelling from court to court. “I proposed this some years ago but was told that the sheriff principals had not considered there was need for it and the Scottish Courts Administration did not want sheriffs who were not able to turn their hand to everything.”

A new paradigm

Research into parenting education in the USA, where mandatory programmes focus on reducing conflict and promoting positive parenting behaviours, has shown that the sooner parents participate in divorce education, the less entrenched communication becomes.

Resources permitting, a multidisciplinary approach in Scotland would enable parents to draw on a cross-section of skills to promote contact and assist conflict resolution. Families Apart is an organisation set up to support separating parents in such a way.

Director Maureen Lynch says any debate should bear in mind the research indication that 25-40% of children whose parents separate lose touch with their father. She believes in having judicial decisions, but arrived at in a much broader context, by involving extra-legal supports such as parent information and education, support for children and support in making the contact work.

“I don’t believe that a judicial process alone, however child focused or mediation orientated, is the appropriate process to reach decisions about care of children.

“The court process for dealing with care arrangements after separation needs to be fundamentally changed – not just procedurally but in terms of its underlying informing principles. Its principal aim should be the promotion of contact, with the resolution of conflict as the necessary ancillary task. I do believe courts are the appropriate locus for care arrangements to be determined, but there is a need for specialist family courts.”

At present it could be argued that our system sends the signal that the issue is dispute resolution and therefore a legal one; consequently the solution is a legal one. The paradigm from the American or Australian models is that the issue is contact and the solution support for the parenting issues that brings – which can lead to resolution of the conflict.

Much of the impetus for change in both countries came from judges and lawyers, says Lynch. Parenting classes should be mandatory – “not because I believe that divorce is easy for parents. In fact quite the opposite – I believe in them because even the best informed and most civilised parents find the continuation of contact with an ex-partner a challenge which can get in the way of their acceptance of the paramountcy of their children’s best interests”. Programmes would last a number of weeks and “help parents to develop the knowledge they need to adapt the skills they have to meet the children’s needs”.

Lawyers changing thinking

Despite her call for change, Lynch is positive about the approach of modern family lawyers in Scotland – practitioners now have a very different approach even from 10 years ago, she believes.

“It seems to me family lawyers accept they have a role in promoting the welfare of children, though it is secondary to the exercise of their duty of care to their clients. A great many have undertaken significant training in relation to mediation techniques, and children’s experience of parental separation. This helps provide them with insight into the experience of their clients and their families, and enables them to see their clients’ need for parenting and personal support.”

However she suspects they remain uncomfortable and/or unwilling over referring to that need with their clients, or in some cases provide such support as a surrogate role. Here, she suggests, the collaborative law approach offers the best opportunity to change lawyers’ thinking. “Where it operates at its most effective in America it is not just a different way of dealing with legal issues. It is a multidisciplinary practice involving a range of practitioners – lawyers, counsellors, parenting coaches, financial advisers – with professional respect for each other and professional acceptance of each other’s potential role in meeting the needs of parents who divorce.”

As the collaborative approach takes root here, it will no doubt become apparent whether it proves a panacea to help couples take control of their post-separation parenting. Until then, we might consider whether our present way of operating adequately serves the children whose best interests are meant to be paramount.

Roger Mackenzie is a solicitor in the family law unit at Maclay Murray & Spens, Glasgow, and a former deputy editor of the Journal


In Australia a series of initiatives have recognised as part of government policy that the fallout from separation situations can have a detrimental impact on society. A growing body of research in the country was pointing towards a public health issue whereby the fallout from parental acrimony was shown to cause mental health problems in children of the relationship, which can last into adulthood.

Triggered by findings indicating that a quarter of separated fathers had contact with their children less than once a year, from July 2007 solicitors in Australia will have to tell clients they require a certificate signed by a dispute resolution mediator before they can issue proceedings. This is designed to encourage clients to enter into a parenting plan by utilising the services of the new family relationships centres to be rolled out throughout the country.

The aim is to ensure that clients will have been subjected to a “pervasive range of influences and messages all coming from non-legal sources” before they engage a solicitor. The government will fund scores of other services to help families, including new children’s contact services, specialist services for men, and a concentration on mediation and other dispute resolution services.

John Quinn of Quinn Lawyers in Sydney said: “The new system in Australia is a great step forward in trying to resolve parenting matters, and is in distinct contrast to the old, when litigants went into chapter and verse pointing out deficiencies of their partner which usually had no great relevance.”

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